Thursday, 30 October 2014

It is not infrequent that I get calls from tenants and landlords alike asking about the costs that go with dealing with bedbugs. Landlords, most often, are concerned about the costs of seemingly never-ending treatment by professional pest control contractors. Landlords want to pass on the costs of treatment to the tenants or sometimes more specifically to tenants they have identified through whatever means as the source of the infestations.

Tenants of course, are extremely unhappy about the costs that they bear as a result of infestations. It takes a lot of time and hassle to get ready for a bedbug treatment. At a minimum, a tenant will have to take all washable clothing, jackets, fabrics, stuffed toys, and wash them and dry at high temperatures to kill any bugs. Further, tenants will have to bag their items, move the furniture in their home and be ready to be inconvenienced for an extended period of time. Some property might also have to be thrown out as pest treatment for some things just aren't possible.

One fact that everyone can agree upon is that dealing with bedbugs is an expensive and highly disruptive process.

So, can a landlord make a tenant pay for the costs of treatment? The straightforward answer, in the vast majority of cases is "no". For the most part, maintaining a rental property to a standard that is fit for habitation requires a landlord to spend the money to treat for pests. Bedbugs, ants, cockroaches are all part of the same over all problem and are the responsibility of the landlord. At the time of writing this article I am unaware of any Board decisions that impose the entire cost of pest control treatment on a tenant.

There are, however, some exceptions to the landlord being solely responsible for treatment costs. The presence of bedbugs, specifically, is something that is very difficult to source. How did the bedbugs get in the unit? The presence of bedbugs is not usually attributable to the condition of the building. Nor is their presence necessarily attributable to whether a tenant is clean and maintains their unit. Bedbugs can infest a perfectly constructed and new building and further they can infest a perfectly clean and meticulously maintained apartment. The fact is that bedbugs can hitch a ride into any kind of building--in furniture, clothing, luggage, and even in new furniture that comes into contact with old furniture in moving trucks.

The point about bedbug infestations is that it is incredibly difficult to determine where exactly the bugs came from. There are, of course, exceptions. Some known risky sources for bedbugs is used furniture, stereo equipment and even used books. In buildings where tenants source furnishings for their units from "free" sources or used places there tends to be a higher incidence of bedbug infestation. Where it becomes increasingly clear that a particular tenant is introducing bedbugs into a unit or building by bringing "risky" furnishings into the building it may indeed be possible to bring eviction proceedings against the tenant for doing so. It is possible to assert that the costs associated with bringing infested furnishings into the apartment complex--contrary to an agreement not to do so--can be the basis for claiming the costs of bedbug treatment. In my experience, claims founded on such allegations tend to work after numerous treatments and observations of the tenant introducing bedbug infested furnishings into their unit.

Another avenue of possible financial recovery for bedbug treatment against a tenant is when the tenant fails to adequately prepare for treatment. The ability of bedbugs to survive treatment is quite high. For treatment to have the best possible chance of success, a tenant is required to prepare their unit for treatment. Pest control companies normally have a unit preparation sheet that sets out a whole list of things that need to be done to make a unit ready for treatment. That sheet needs to be delivered to the tenant well in advance of the intended treatment and it needs to be stressed to the tenant that the instructions need to be complied with. While many landlords don't do it, I strongly urge landlords that I represent to not only deliver the instructions sheet but to also contact tenants to ask if they need any help in complying with the instructions. It is in the interest of both the landlord and the tenant that a unit be properly prepared for treatment.

If a tenant fails to prepare a unit properly for treatment the landlord will normally receive a report from the pest control company that the unit was not sprayed as it was not properly prepared or that the unit was treated but that the failure to prepare it properly likely will mean that treatment will not be effective. The end result is that the cost of treatment will increase as the pest control company will be invoicing the landlord for multiple treatments or wasted attendances due to incomplete preparation of the unit for treatment. These costs can indeed be used in a Notice of Termination and charged back to a tenant if there is no good excuse for the failure to prepare the unit for treatment. In this respect, having documented not only the delivery of the preparation sheet but also the inquiry to the tenant about them needing "help" to prepare is useful evidence.

In summary, in the vast majority of situations, the cost of treating for bedbugs is the sole responsibility of the landlord. Bedbugs are a pest, like other pests, that simply are a reality of modern living that the landlord needs to anticipate as part of its maintenance obligation. The same is true with respect to the impact of bedbugs on tenants living and their property. For the most part, so long as a landlord follows the advice of a licenced pest control company and that advice is comprehensive and sound, a landlord will not be liable to a tenant for the inconvenience associated with a bedbug infestation.

Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP. Graduate of Queen's University in Kingston, Ontario. Called to the bar in Ontario in 1997. Undergraduate degree at Colby College, Waterville Maine, U.S.A.

Wednesday, 29 October 2014

What is the scope of a tenant's responsibility for the cleanliness of their apartment? Often enough, it becomes clear that one person's sense of what it means to be neat and tidy is completely at odds with another person's sense. Conflict arises not just because tenants are messy but also because landlords can have an exaggerated sense of how "clean" a tenant has to keep their unit. I've seen many lease agreements where landlords have inserted clauses referencing "professional" cleaning, or using language like "spic and span", "like new", or requiring the unit to be returned in the "exact" condition it was received.

Sometimes, tenants are driven to their wits end by demanding landlords who serve 24 hour notices for entry and then provide "violation" notices based on the entry raising objections to things like dishes in the sink, clothing on the bedroom floor, kitty litter boxes being used, random furniture placing, etc.. Tenants are left wondering whether the landlord has the right to dictate the level of cleanliness and frankly tell the tenant how to live. When the landlord's demands are backed up by language in a tenancy agreement (lease) that says "spic and span" or "professionally cleaned" tenants often feel that they have no choice but to meet the landlord's demands.

From the reasonable landlord's perspective the old adage of "cleanliness is next to godliness" is an apt description of how they wish their properties kept. With cleanliness usually comes being tidy. Being tidy and maintaining cleanliness normally demonstrates that care is being taken of the property. Landlords care about this for several reasons. A clean and tidy apartment is much less likely to attract pests that will require expensive pest control treatment. Further, in clean apartments an infestation will be noticed sooner and treatment will be started sooner and therefore will be less difficult to eradicate. A tenant who is clean and tidy will also tend to be more careful meaning there will be less wear and tear. Carpets will last longer, and the over-all condition of appliances, walls, floors, tiles, etc., will be better over time. And lastly, a clean and tidy apartment requires less work--and less money-- to prepare for the next tenant on unit turn over.

Most landlords and most tenants have an innate sense of what is reasonable behavior on the part of the tenant and what is reasonable for a landlord to demand. There is no perfect definition of what is required but there is a range of what is acceptable and in that sense the best way to describe it is "you know it when you see it". While "you know it when you see it" is a great standard when the landlord and tenant agree--what are the rules when the landlord and the tenant have very different opinions of what is reasonable?

The first point I'll make is with respect to lease clauses like "spic and span", "like new", "exact condition", "professionally cleaned" and "no wear and tear". All of these phrases, and ones similar to them, seek to impose a standard of maintenance on a tenant. By using these phrases in a lease, a landlord is seeking to create a contractual obligation for a tenant to maintain the premises according to the standard imposed by these phrases. The argument that landlord's often make is that if the tenant does not wish to adhere to this standard then they shouldn't sign the lease. After-all, no one is forcing the tenant to rent this unit. Hence, if the landlord lives in a house where the plastic remains on the lampshades the landlord's argument is that the tenant should also live this way if the lease terms require that level of cleanliness.

There is something attractive about the argument as I do think people have a sense that in Ontario people still have a freedom to contract. As consenting adults we should be able to enter into whatever kind of contract we wish so long as the terms are not illegal (i.e. contract for murder) or contrary to public policy (i.e. contract that discriminates on prohibited grounds). Why shouldn't landlords be able to hold prospective tenants to a very high standard of cleanliness?

I think the answer to this question is answered in the Residential Tenancies Act (RTA). The RTA in many respects has taken away the right for consenting adults to make their own private contracts. The RTA and the predecessor legislation ( Tenant Protection Act and Landlord and Tenant Act), were passed by the Ontario Legislature with the implied understanding that in residential leasing, there is a significant power imbalance between landlords and tenants. The underlying premise is that landlords have all the power and can impose unreasonable and oppressive terms on tenants if there is no regulation of the leasing arrangement between landlords and tenants. The RTA today, seeks to take away the unbridled power of landlords in their dealings with tenants so that the ability to negotiate terms in a lease are constrained and kept within certain "reasonable" boundaries. Effectively, in the residential leasing context, landlords and tenants are intended to have almost equal power with respect to the tenancy. Of course, many people have wildly varying opinions on whether the RTA accomplishes this, but my point simply is that the RTA does take away the right to contract freely.

How does the RTA do this? The answer lies in section 4 of the RTA. It provides: PROVISIONS CONFLICTING WITH ACT VOID---Subject to section 194, a provision in a tenancy agreement that is inconsistent with the Act or the regulations is void.

It is section 4 of the RTA that I believe is the basis for making the clauses of "spic and span", "perfect condition", "like new" and "professionally cleaned", void and of no force and effect. What I am saying is that I believe these clauses are illegal and unenforceable under the RTA.

Of course, section 4 RTA, on its own does not make these clauses illegal. Section 4, is simply the basis for voiding a clause/lease term if it contradicts the RTA. So, how does the RTA provide a standard of cleanliness/tidiness that would set a standard that the lease clauses (spic and span etc.) would violate. The answer I believe is in section 33 of the RTA.

Section 33 RTA provides as follows: TENANT'S RESPONSIBILITY FOR CLEANLINESS---The tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it.

The key to section 33 of the RTA are the words "ordinary cleanliness". The responsibility of a tenant with respect to cleanliness of the rental unit is something that the RTA specifically regulates. The standard is legislated and a matter of law. This means that the landlord and tenant are not free to contract to a different higher standard as doing so, and using any kind of clause in a lease to impose a higher standard, would be deemed void pursuant to section 4 RTA as set out above.

Section 33 of the RTA also provides the answer to landlords who have serious concerns about the condition of an apartment that they have rented to a tenant. What if the lease that is signed is silent on the issue of cleanliness. Does this mean that the tenant can live how they wish? What if there is no lease at all? The answer is section 33 of the RTA and regardless of what the lease provides or even if there is no lease at all, a tenant is required to maintain a rental unit to a standard of ordinary cleanliness. If the tenant fails to maintain the unit to this standard then a landlord may serve a Notice of Termination on the Tenant (usually a Form N5), and if the situation is not corrected proceed to evict the tenant.

A question you may have is what does "ordinary cleanliness" as used in section 33 of the RTA mean? Unfortunately, there is no definition of this phrase in the RTA itself. The words simply mean what they mean---which means that they need to be interpreted by the adjudicator. Hence, "ordinary cleanliness" will be measured against an "objective" standard of what is commonly understood to be "ordinary cleanliness". The standard is not fixed or measurable on a precise scale. There is likely some flexibility in the standard depending on the context of the tenancy. What is required as a part of ordinary cleanliness may be different depending on the nature of the rental unit, the location of the rental unit and the status of the rental unit. The context/circumstances of the tenancy will be relevant in informing what constitutes "ordinary cleanliness".

Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP. Graduate of Queen's University in Kingston, Ontario. Called to the bar in Ontario in 1997. Undergraduate degree at Colby College, Waterville Maine, U.S.A.

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About Michael Thiele

Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP. Graduate of Queen's University in Kingston, Ontario. Called to the bar in Ontario in 1997. Undergraduate degree at Colby College, Waterville Maine, U.S.A.